Citation NR: 9603864
Decision Date: 02/20/96 Archive Date: 03/07/96
DOCKET NO. 92-16 489 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for residuals of a
right knee injury.
2. Entitlement to service connection for residuals of a left
knee injury.
3. Entitlement to service connection for residuals of injury
to back.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Chaplin, Associate Counsel
INTRODUCTION
The veteran had active service from August 1951 until August
1955.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of December 1991,
from the Winston-Salem, North Carolina, regional office (RO)
which denied service connection for a back disorder and a
left knee disorder. This matter further arises from a rating
decision of March 1992 which denied service connection for a
right knee disorder and confirmed and continued the prior
denials.
The Board remanded the case in March 1994 for further
development. It has been returned and is now ready for
appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred in not granting
service connection for residuals of injury to back, right
knee and left knee. He states that during service he fell 25
feet from a masthead down a ladder and injured his back and
knees. He claims that he has had problems since that time.
He further claims that while in the hospital he was told that
he would be discharged at the end of his tour of duty if he
signed a waiver. He did so and was transferred from the
hospital to San Diego Destroyer Base for processing his
discharge. He claims that he was processed at the base
wearing a back brace obtained before leaving the hospital.
He did not file earlier for compensation as he was under the
impression that he did not have a legal right to do so. He
further claims that he has suffered with his knees and back
ever since discharge. He has worn back braces and supports
through-out his adult life.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against service connection for residuals of a
back injury.
Further it is the decision of the Board that the veteran has
not met the initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
the claim for service connection for residuals of a left knee
injury and residuals of a right knee injury is well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal on the claim for service connection
for residuals of a back injury has been obtained by the
agency of original jurisdiction.
2. In service the veteran suffered myositis due to trauma of
the erector spinae, a twisting injury. After months of
treatment he was asymptomatic and found fit for duty.
3. The August 1955 discharge examination noted a normal
clinical evaluation for lower extremities and spine, other
musculoskeletal.
4. No continuity of treatment has been shown by competent
medical evidence.
5. A November 1991 VA examination reported a diagnosis of
lumbosacral strain, chronic without degenerative x-ray
changes. No competent medical evidence provides a link
between the inservice injury and the current back disorder.
6. The service medical records do not show a left knee
injury during service. There is no competent medical
evidence linking the current left knee condition to an event
in service.
7. Service medical records show that the entry of trauma to
the right knee was subsequently determined to have been made
in error and was changed to trauma to the back.
8. There is no competent medical evidence of a current right
knee condition.
CONCLUSIONS OF LAW
1. Service connection for residuals of a back injury is not
warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R.
§ 3.303 (1994).
2. The veteran has not submitted a well grounded claim for
service connection for residuals of a left knee injury.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303
(1994).
3. The veteran has not submitted a well grounded claim for
service connection for residuals of a right knee injury.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In September 1991, the veteran filed a claim for service
connection for residuals of an injury in 1953 to his back and
left knee. He later expanded his claim to include residuals
of injury to right knee. Additional service medical records
were received in June 1992.
I. Residuals of injury to back
The appellant claims that he injured his back in service and
that his present back condition is a residual of that injury.
Service medical records show that the veteran suffered a fall
in service. A Department of Veterans Affairs medical
examination in November 1991 diagnosed chronic lumbosacral
strain without degenerative x-ray changes. The appellant's
claim is "well grounded" within the meaning of 38 U.S.C.A.
5107(a) (West 1991); that is, he has presented a claim that
is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
Furthermore, he has not indicated that any probative evidence
not already associated with the claims folder is available;
therefore the duty to assist him has been satisfied. Id.
Service medical records show that in October 1954 the veteran
was admitted to the U.S. Naval Hospital in San Diego,
California. Although the admission diagnosis referred to
trauma of the right knee, the veteran stated on the date of
admission that he injured his back when he fell from a stage
aboard ship. Upon admission to the hospital, the physical
examination was negative except for acute spasm in the lumbar
muscles. A radiographic examination of the lumbosacral spine
revealed no evidence of bony abnormality. Treatment
consisted of bed rest and physical therapy. In January 1955,
the diagnosis was changed by reason of error to Myositis, due
to trauma, erector spinae, twisting injury.
The veteran appeared before a Board of Medical Survey on July
16, 1955. The diagnosis was myositis due to trauma, erector
spinae, twisting injury. He was asymptomatic at that time.
The Board of Medical Survey concluded that the veteran had a
back strain from which he had completely recovered. He was
found fit for duty and the Board of Medical Survey
recommended that he be returned to full duty. An entry dated
August 6, 1955, showed “To duty, fit for same.”
The report of examination for release to inactive duty
performed on August 9, 1955, noted a clinical evaluation of
normal for lower extremities, and spine, other
musculoskeletal. In addition, the veteran’s Form DD 214
indicates that he was recommended for reenlistment.
Medical records obtained from K. Anderson, M.D. show that the
veteran was seen in July 1985 for a follow-up of severe left
shoulder muscle strain. In December 1985 he presented to the
clinic for a physical examination which was within normal
limits. He related that he had no previous medical problem.
In June 1986 he presented to the clinic for a physical
examination to continue as a motor carrier driver and stated
that he had no medical problems at that time. The
examination was within normal limits and he was able to
participate in the job as desired. Two other consultations
were for complaints unrelated to this claim. In January
1990, he presented for a complete physical examination. The
veteran reported that he was doing quite well and had no
immediate complaints. His past medical history did not
include an injury to his back. The assessment was reflux
esophagitis, S/P appendectomy and tonsillectomy, and that he
previously had a normal stress test. Another entry reflected
treatment for an upper respiratory infection.
A letter dated in October 1991 was received from Dr.
Anderson. He wrote that he had known the veteran for many
years and recently he developed a rather severe discomfort in
his left knee and required treatment for this. The veteran
related that he was injured in service and has had low back
pain and left leg pain for many years. He had been able to
cope with the residual back and leg discomfort in the past.
Dr. Anderson felt that acute osteoarthritis in the left knee
was present in August 1991. The veteran was still having
problems with swelling and pain from time to time. The
veteran indicated that this caused him significant problems
in trying to cope with the residual back problems. The
doctor stated that the previous injury most likely had made
it most difficult for the veteran to cope with his left knee
problem.
The veteran was afforded a Department of Veterans Affairs
(VA) medical examination in November 1991. He gave a history
of falling on his back in the Navy, hurting his back, and
having trouble ever since. He related that he was under
treatment or observation with his back after discharge from
service. The diagnosis was lumbosacral strain, chronic
without degenerative x-ray changes.
The veteran replied to the letter from the VA requesting
information regarding treatment since discharge from active
duty. He wrote in November 1991 that after discharge he saw
T. G. Upchurch, M.D. for continued problems with his back and
left leg. After the doctor died in 1985, he began to see Dr.
Anderson. He had been unable to obtain Dr. Upchurch’s
records.
A lay statement dated in December 1991 was received from Dr.
Upchurch’s registered nurse. She wrote that the veteran
became a patient of Dr. Upchurch in late 1955 and visited
regularly for problems with his back and knees. She was
unable to confirm a diagnosis but remembered the problems
were related to injuries when he was in service. She
recalled that medication was prescribed for his pain.
The veteran was afforded a personal hearing in April 1992.
He testified that he had injured his back and his knees in
service. He felt that there were some missing service
records. He stated that he did not return to duty when he
was released from the hospital but was sent directly to the
Destroyer Naval Base in San Diego, California, to be
processed for immediate discharge. While in the hospital for
approximately 10 months, he was on bed rest and had physical
therapy. He was not conscious when first admitted to the
hospital, and when he woke up, he was in traction and he
recalled having back and knee pains. He stated that the
treating orthopedic surgeon told him that he had pulled
tendons loose and that a nerve had been pulled loose. After
approximately 10 months of treatment and near the end of his
tour of duty, he was told that if he signed a waiver of
medical release he would be discharged. He stated that at
that time all he could think about was getting out of the
Navy to be with his family, so he signed the waiver. He was
given a back brace to wear.
He testified that he first received treatment from Dr.
Sinclair in San Diego, California. Dr. Sinclair gave him
pills for pain. The veteran later testified that Dr.
Sinclair was most likely no longer living. He clarified that
he was first treated by Dr. Sinclair, then when he moved to
North Carolina, he was treated by Dr. Upchurch who died in
1985. He finally got in touch with the nurse who had written
to VA on his behalf. He recalled that both doctors took x-
rays and said that no damage to the spinal column could be
seen. After military service the veteran entered college and
subsequent to this he worked in personnel management for the
next 12 or 13 years for a company in San Diego, California.
In response to a question whether he did similar type work
after moving to North Carolina, he testified that he does
similar office type work now. The veteran described that
even sitting in a chair, his back gets tired and painful. He
has taken pain pills for this all his life. He contended
that there were additional records pertaining to inservice
treatment which were not of record.
Analysis
While service medical records, including the additional ones
received, clearly indicate treatment for residuals of a back
injury during active service, the records also show that
after treatment he was found asymptomatic. A Board of
Medical Survey concluded that he had completely recovered
from a back strain, found him fit for duty and recommended
that he be returned to full duty. Shortly thereafter, he was
examined prior to discharge and the spine and other
musculoskeletal were evaluated as normal.
Initially, the veteran indicated that after discharge he
received treatment for Dr. Upchurch and a letter was received
from the nurse who worked for Dr. Upchurch. She wrote that
the veteran became a patient of Dr. Upchurch in late 1955 and
visited regularly for back and knee problems. We note,
however, that at his hearing the veteran testified that
immediately after service, he was treated by Dr. Sinclair,
and it was not until he moved to North Carolina,
approximately 12 years later, that he became a patient of Dr.
Upchurch. We find the veteran’s testimony to be more
credible than the nurse’s letter as to when the veteran
sought treatment from Dr. Upchurch. In addition, she was
unable to give a diagnosis but remembered the problems were
related to service injuries. This lay statement is not
sufficient to establish that the veteran’s claimed
disabilities are due to service injuries. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992) (No. 90-452) (lay opinion
concerning an issue requiring technical expertise, such as
the precise cause of a medical disorder, is not probative
evidence).
Although the veteran claims that he has suffered continuously
from back pain, the clinical records from Dr. Anderson
indicate that the veteran had a physical examination in
December 1985 when he related that he had no previous medical
problems and the examination was within normal limits. In
June 1986, the veteran presented for a physical examination
to continue as a motor carrier driver and stated that he had
no medical problems. The examination was within normal
limits and he was able to continue his job. Again in January
1990, he was examined and had no immediate complaints. No
findings were made of a back disorder. In addition, the
medical history reported did not include a back injury. In
an October 1991 letter from Dr. Anderson, he wrote that the
veteran recently developed a left knee condition which
required treatment. The veteran felt that the continuing
problems with his left knee caused him problems with the
residual back problems. The veteran’s history of being
injured in service and having low back pain and left leg pain
for many years was included. The claim of having continuous
low back pain is not supported by the clinical medical
evidence. We also note that for some years the veteran did
not work at an office job, but performed the job of a motor
carrier driver. Accordingly, we find no continuity of
treatment has been shown by competent medical evidence.
Although the diagnosis in November 1991 at the VA examination
was of chronic lumbosacral strain, there is no competent
medical evidence linking this disorder to an inservice
injury. The veteran gave a history of injuring his back in
service and having problems ever since. We find that this is
merely a transcription of lay history unenhanced by any
medical comment by the examiner and, as such, does not
constitute “competent medical evidence” sufficient to link
the veteran’s current back disorder with an inservice injury.
LeShore v. Brown, No. 94-766 (U.S. Vet. App. Nov. 22, 1995).
In the absence of showing continuity of symptomatology, and
no competent medical evidence linking the veteran’s current
back disorder with an inservice injury, service connection
must be denied.
II. Residuals of injury to left knee and residuals of injury
to right knee
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995);
see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1994).
A service-connection claim must be accompanied by evidence
which establishes that the claimant currently has the claimed
disability. See Rabideau v. Derwinski, 2 Vet.App. 141, 144
(1992); see also Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992) (absent “proof of a present disability there can be no
valid claim”).
At the veteran’s personal hearing he testified that Dr.
Sinclair gave him a salve to rub on his knees to help relieve
the pain.
Right knee
Although, initially, a diagnosis from trauma to the right
knee was entered, this was subsequently noted to have been in
error, and changed to a diagnosis involving the back. Other
than the entry made in error, service medical records show no
complaints, treatment for, or diagnosis of a right knee
disorder. Further, no medical evidence has been submitted
showing that the veteran currently has a right knee disorder.
As the veteran has not provided proof of a present disability
with regard to the condition claimed, we find that the claim
is not well-grounded. See Boeck v. Brown, 6 Vet.App. 14, 17
(1993) (if a claim is not well grounded, the Board does not
have jurisdiction to adjudicate it).
Left knee
Service medical records were negative for complaint of,
treatment for, or diagnosis of a left knee disorder.
Although the veteran had written that after discharge he saw
T. G. Upchurch, M.D. for continued problems with his back and
left leg, he later clarified that he was a patient of Dr.
Upchurch when he moved to North Carolina, approximately 12
years after discharge. He had been unable to obtain Dr.
Upchurch’s records. After the doctor died in 1985, he began
to see Dr. Anderson.
Dr. Anderson wrote in October 1991 that the veteran had
recently developed a rather severe discomfort in his left
knee and required treatment for this. Dr. Anderson felt that
acute osteoarthritis in the left knee was present in August
1991. The veteran related that he was injured in service and
has had low back pain and left leg pain for many years. He
had been able to cope with the residual back and leg
discomfort in the past. This evidence places the onset of
the veteran’s left knee disorder many years after service.
Although the veteran claims symptomatology and treatment for
a left knee disorder since discharge from service, no
competent medical evidence has been submitted to support this
claim.
At the VA medical examination in November 1991, he gave a
history of striking or having a contusion of his left knee.
He continued to have trouble with his knee and re-injured it
in May 1991. The diagnosis was arthralgia of the left knee
with medial collateral strain and spurring of patella.
Although medical evidence has been submitted showing a
current disability of a left knee disorder, there is no
evidence of an injury to his left knee in service, and no
link between service and the current disability as provided
by competent medical evidence. As the three elements of a
well-grounded claim have not been met, we find that the claim
for service connection for a left knee disorder is not well-
grounded.
Duty to assist:
Where the veteran has not met this burden, the VA has no duty
to assist him in developing facts pertinent to his claim,
including no duty to provide him with a medical examination.
38 U.S.C.A. § 5107(a) (West 1991); Rabideau, 2 Vet.App. at
144 (where the claim was not well-grounded, VA was under no
duty to provide the veteran with an examination). However,
where a claim is not well-grounded it is incomplete, and
depending on the particular facts of the case, VA is obliged
under 38 U.S.C.A. § 5103(a) to advise the claimant of the
evidence needed to complete his application. See Robinette
v. Brown, 8 Vet. App. 69 (1995). In this case, the RO
substantially complied with this obligation in an October
1991 letter to the veteran advising him to submit evidence
showing that the claimed disabilities had been treated since
discharge from service. A letter in December 1991 with the
rating decision enclosed provided an explanation for the
denial of service-connected benefits. A statement of the
case informed the veteran of the denial of service connection
for the claimed disabilities. Moreover, this Board decision
informs the veteran of the evidence that is lacking to make
his claim well grounded. Unlike the situation in Robinette,
he has not put VA on notice of the existence of any specific,
particular piece of evidence that, if submitted, could make
his claim well grounded.
ORDER
1. Service connection for residuals of a back injury is
denied.
2. Well-grounded claims for service connection for residuals
of injury to the right knee and residuals of injury to the
left knee not having been submitted, the claims are denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -